Well, ok… the Tom Delay types then.
Well, if we have to give a scary amount of power to a branch of government, I’d rather give it to the people who strike down laws than to the people who make and enforce them.
Caj
Curiosity: what branch of government doesn’t already have a frightening amount of power?
It all looks pretty scary from where I’m sitting.
–James
somebody has to have power. If not the government as it exists, than somebody would take it by force. Probably whoever stockpiles the most AK’s.
The claim that the charge of “judicial activism” is being levied for political, not moral or quasi-constitutional, reasons seems to have some merit to it. Aside from the somewhat obvious point that almost anything a judge does can be seen in some sense “activist,” especially if the ruling is unfavorable, there seems to be quite a bit of inconsistancy in how the Repubicans go after the activists. Quoth the Times,
Alberto R. Gonzales, the attorney general, who was a member of the Texas Supreme Court at the time, was in the majority and wrote that the position of the three dissenters was “an unconscionable act of judicial activism.” To the dismay of Mr. Gonzales and Justice Owen’s supporters, that quote was used to oppose her nomination.
Of course, this can’t stand,
In the summer of 2002, Mr. Gonzales, who was the White House counsel at the time, sought to minimize the impact of his remarks. He acknowledged that calling someone a “judicial activist” was a serious accusation, especially among Republicans who have used that term as an imprecation against liberals.
But he added: “I know what President Bush expects in nominees, and I am absolutely confident that she will do her job in a way that is consistent with the president’s philosophy of judging; that is, interpreting the law and not legislating from the bench.”
More recently, Mr. Gonzales appeared to have provided a new version of what happened, telling a Senate hearing that he was not referring to Justice Owen when he used the phrase “judicial activist” but to himself. “My comment about an act of judicial activism was not focused at Judge Owen,” he said. “It was actually focused at me.” His apparent explanation seemed to be that it would have been an act of judicial activism for him if he had done what Justice Owen and her two fellow dissenters had done.
Mmm hmm. I see. The Times also ran an op-ed piece a few days ago about Justice Scalia, which pointed out that the Justice admitted to ruling in a fashion that seems to fit the bill of the Evil Activist Judiciary. For example, in the Bush-Gore ruling he wrote
…the only issue was whether we should put an end to it, after three weeks of looking like a fool in the eyes of the world.
Now, the argument can be made that this is coming from an opinionated source, but I find it difficult to believe that it’s fabricated. We can all debate the problem of checks and balances, but it’s important to be honest , both to ourselves and to everyone else, about our real motivations.
I’ve listened to analysis by legal scholars reporting on Bush v. Gore who said reports by aides to the various justices were very clear that several of the justices had made up their minds beforehand that the recounting in Florida must be stopped and were only trying to determine what grounds the Court would give for doing so. The aids who reported did so anonymously to protect their jobs, but they felt the matter was so important, they wanted the information to get out.
It may be worth mentioning that, for a case to be heard, the party bringing the case must have legal standing, which means that person must be affected by the issues to be heard. In the case of Bush v. Gore, the case was supposedly brought by Bush on behalf of voters, whose rights to equal protection had somehow been violated by the recount. There are respected legal scholars who say the case should have never been heard because Bush’s equal protection rights were not affected by the recount and he did not have legal standing to bring the case at all.
I believe the Court heard Bush v. Gore because they were afraid the country would be thrown into a crisis if the recounting were to continue and the Florida electors were to cast their votes for Bush without an election result that could be certified before the deadline, and I believe they invented a reason to do it, without any solid legal ground.
For the record, the various press organizations who conducted their own recount of the ballots (which are part of the public record) found that Bush would have won a recount by a few hundred ballots.
I still believe the election was fraudulent, however, because tens of thousands of eligible voters were systematically purged from the Florida rolls on the pretext of removing convicted felons. Thousands of people who were prevented from voting by this action were not felons at all, but eligible voters. This has been clearly shown to have been a calculated effort to remove minority voters who likely would have voted for Gore, and it appears to have made the difference in preventing Gore from winning Florida. There were also numerous acts of intimidation to prevent minority voters from going to the polls.
It is amazing to me that the Florida Secretary of State, the person responsible for ensuring the integrity of the election, could legally also be the person given responsibility by the Republican party for delivering the election to Bush. The conflict of interest is so extreme, it amazes me that it could be legal at all for the same person to have both jobs.
Jimmy Carter has commented that US elections do not meet the international standard of free and fair elections. Although Carter served as a Democrat, he is generally neutral in his comments nowadays and doesn’t appear to be motivated by partisan attitudes when discussing such matters.
Best wishes,
Jerry
We had a discussion of the Supreme Court ruling in question
at the time. I did try to understand it, maybe it’s possible
to dredge iup our discussion (because I don’t remember
the details); anyhow I thought if was reasonably based in the law.
I talked to attorneys who voted for Gore
who described the Supreme Court ruling as ‘sensible.’
There were, I believe,
two dissents from the Florida State Supreme Court ruling that the Supreme Court overturned. One of them,
the chief justice of the Florida court, who had voted for everything the court had done
up till then, dissented on the ground that the
state supreme court ruling could never pass constitutional
muster on 14th Amendment Equal Protection Grounds, precisely the
ground on which the US Supreme Court overturned it.
FWIW, short of roling up our shirt sleeves and
going back in, I don’t think the Court overreached.
Naturally the decision was politically
controversial, and justices did tend to break down
along lines that might be construed as political, but
it doesn’t follow that one side or the other was
carried away by political prejudice.
I’ve been corresponding offboard with Bloomfield about Roe,
which I consider a paradigmatic activist decision. As I’ve
taken the trouble to type this all out, permit me to post it here.
The Court, to get the decision off the ground, must extend
the right of privacy the Court found in earlier cases concerning
contraception, Griswold and Eisenstadt, to abortion.
The right of privacy is pretty doubtful, but let them have it.
It flows from the penumbra of the Bill of Rights, the home
is a ‘zone of privacy’ (Griswold) where the state may not enter
at will, the ‘sacred precints of the marital chamber’ (Griswold)
and so on.
Note however that the zone of privacy is left behind in the
case of abortion. The procedure is performed, not in the
‘sacred precints of the marital chamber’ but in a hospital,
clinic or doctor’s office, which the state may regulate, license
and inspect. So a principal privacy-making feature of contraceptive use has fallen away.
Further, on the face of things, sex is private. This is another privacy making feature of contraceptive use,
it’s used during the act of sex.
By contrast, abortion is major surgery, involving a surgeon, an anaesthesologist, and so on.
It’s done in a crowd.
Finally, contraceptive use doesn’t harm anybody whose life is protected by the criminal law.
But abortion kills, and is typically meant to kill, a child, so-called in the law, whose life is protected by criminal statutes against this very procedure and has been, in fact, for most of the country’s history.
So the privacy making features of contraceptive use, the zone of privacy, the sex act, the
victimless crime under the law, are absent in the case of abortion and replaced by
public making features: major surgery performed in the public sector (regulated by the state) that kills a child whose life is protected by criminal sanctions from being taken in this way.
Therefore the Court has a reasonable burden–explain how the ‘right of privacy’ found in
the contraception cases can be plausibly applied to something that seems substantially
non-private–the felony killing of a child by major surgery performed in a hospital, clinic or physician’s office.
The deep difficulty with Roe isn’t that Court gives a bad argument at this juncture, but that it gives no argument–‘We rule that the right of privacy found in these earlier cases is sufficiently broad to cover abortion too.’ That’s it. Why does the right of privacy cover abortion too?
Because the Court says it does.
If ever one wanted a good argument from the Constitution to a ruling, surely it would be when the ruling declares open season on a class of individuals whom we have traditionally protected.
Obviously the Court needs to be careful in such cases–given Dred Scott in the background and acting in the same century as the Holocaust, the absence of an argument, a ruling by fiat,
is seriously flawed legally.
The Court tries sideways to address the issue, by maintaining that abortion statutes typically weren’t meant to protect unborn children, but merely to protect women from a dangerous surgical procedure; fetuses were protected as a mere side effect. The Court says that the few 19th century state supreme court rulings that addressed the issue so ruled, and cites a NJ court. The idea is that, as the children aren’t meant to be protected by the law, abortion is more like contraception than first appears, and the gulf between contraceptive use and abortion can be more easily bridged.
The problem is that this claim is belied by the legal record–twelve state supreme court rulings from the 19th century say the laws were meant to protect both women and children (as fetuses were called in the laws). In 1949 the Virginia State Supreme Court ruled that the law wasn’t meant to protect women but the child alone, and through him, society. (I’ve
tracked these down in the law library.) A fair reading of the legal record, and the forces that led in the mid-19th century to the criminalization of abortion back to conception and increasing the penalties (especially the AMA, which insisted that abortion was the taking of children’s lives; the
‘physicians’ crusade against abortion), makes it
obvious that the laws were meant to protect children too. The Court based the ruling on a fabricated legal record given it by the pro-choice counsel–fabricated not in that things were made up, but that what didn’t fit the legal agenda was omitted.
So, at the point where the Court has a burden of explaining how the Constitution warrants the ruling, there is no argument–it rules by fiat that the right of privacy covers abortion, ‘an exercise in raw judicial power’;
to the extent that the ruling is argued for from the flanks, the argument is based on a fabricated legal record.